34 P. 809 | Idaho | 1893
(After Stating the Facts.) — At the time this ditch was constructed, E street, at the point of this crossing, was a county road. No one of the inhabitants could lawfully obstruct it, or render it dangerous to travel. The common law is, and was at that time, that where a person or corporation builds a ditch or canal across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound to restore or unite the highway at their own expense by some reasonably safe and convenient means of passage. This duty is founded on the principle that it was the act done in pursuit of their own advantage that rendered this necessary, and there
The question as to whether the city or the defendants would be liable for any injury occurring to the person or property of an individual which might happen by reason of the unsafe condition of the bridge has nothing whatever to do with the question at issue in this suit. The building of the bridge by the city creates an implied contract on the part of the defendants to pay the costs and expenses of the same by operation of law.
The plaintiff claims that the court erred in not finding that the defendants had obtained a prescriptive right to maintain their ditch across the street without a bridge. A private party or corporation constructing a ditch across a public highway or street of a town or city in such way as to render the highway or street unsafe or inconvenient for public travel, and maintaining such a ditch without a bridge or other safe and convenient way of crossing would be guilty of maintaining a nuisance. (Idaho Rev. Stats., see. 3630.) No lapse of time can give a prescriptive right to maintain a nuisance. (Idaho Rev. Stats., sec. 3630.)
The counterclaim for damages is a cause of action which arises, if at all, from an act which would be a trespass to property; and a cause of action for trespass to property cannot be a subject for counterclaim against an action arising upon a contract, express or implied. The judgment of the court below is affirmed, with costs to the respondent.